Kelly v. Kansas City Rys. Co.

• Decision Date: 08 November 1920
• Docket Number: No. 13772.,13772.
• Citation: 225 S.W. 133
• Parties: KELLY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

225 S.W. 133

KELLY v. KANSAS CITY RYS. CO.

No. 13772.

Kansas City Court of Appeals, Missouri.

November 8, 1920.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

Action by Katherine E. Kelly against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard J. Higgins, of Kansas City, Kan., A. A. Whitsitt, of Harrisonville, and Charles N. Sadler, of Kansas City, Mo., for appellant.

Watson, Gage & Ess, of Kansas City, Mo., for respondent.

ELLISON, P. J.

This action is for personal injury received by plaintiff while a passenger on one of defendant's street, cars. She recovered judgment in the trial court.

Plaintiff was sitting on a seat running lengthwise of the car and near the rear end. The car stopped at a street crossing, when a woman got aboard and proceeded from the vestibule into the main body of the car, there being a handrail running from the vestibule into the car which was used as a handhold for those entering the main part of the Car. As the woman got into the main body of the car, yet holding to the rail with one hand, she was about in front of the plaintiff, sitting on the seat. At that time the car was started forward with a sudden, quick jerk, which threw the woman with great force onto plaintiff, the woman's elbow striking her violently on the abdomen and causing immediate hernia, from which she suffered much, and on account of which she was afterwards taken to a hospital and there operated upon.

Under the claim that a demurrer to the evidence should have been sustained, defendant at much length and great technicality endeavored to show that plaintiff's account of the affair, as she stated it in testimony, was so contradictory and so far against physical facts that she has not made a case. We have examined the evidence, and find defendant is not justified in such claim.

There is no controversy concerning plaintiff's receiving injury while sitting on a sideseat by reason of a woman who had just entered the car falling on her and striking her on the abdomen. The dispute is mostly over purely nonessentials, such as which direction either woman was facing, how far apart they were, whether the woman put her hand on plaintiff's shoulder and asked pardon, and the like.

Witnesses in defendant's behalf testified to the fall on plaintiff. Some of them thought the fall was caused by the woman tripping instead of a jerk; but there was abundant evidence tending to show the sudden jerk of the car threw her down.

It is true that, if one is erect in a standing car, and it is suddenly and violently started forward, it will take his feet in the direction of the car, and his body will lie in the opposite direction; as it is commonly expressed, it will "jerk his feet from under him." But there are many things which the falling person may do that will alter this natural result in the case of animate beings. Thus, as in this case, a handhold is taken, or sought, or in other ways the body resists. Benjamin v. Street Ry., 245 Mo. 609, 151 S. W. 91; Ownby v. Street Ry., 227 S. W. ___, decided by us this term.

There is nothing in the contention that plaintiff gave such contradictory accounts of the affair as to wholly discredit her and bar a recovery. She does not fall within the rule stated by the Supreme Court in Steele v. Railway Co., 265 Mo. 97, 175 S. W. 177, and by this court in Harriman v. Dunham, 196 S. W. 443. There was no deliberate change of testimony from one thing to something opposite for the purpose of making a case. The face of her testimony shows she was unlettered and unlearned, and, whatever apparent contradictions may appear in her statement as to the position of the woman who fell upon her, they were not such as to charge her with bad faith, but rather to awkwardness of statement. The evidence was such as left the jury free to see how the injury occurred.

It is claimed that there was a variance between the pleading and proof in that it was alleged that the injury was inflicted at Twenty-First and Summitt streets, whereas the evidence was that the occurrence was at Twentieth and Summitt streets. There was no affidavit of surprise as required by section 1846, R. S. 1909, and the point cannot now be made. There was not a total failure of proof. Fisher & Co. v. Realty Co., 159 Mo. 562, 567, 62 S. W. 443; Chouquette v. Railway Co., 152 Mo. 263, 53 S. W. 897; Nelson v. Railway Co., 113 Mo. App. 702, 88 S. W. 1119.

Extremely technical objection is made to the first instruction given for plaintiff. In the petition it is charged that the car was started "with a sudden, violent, and unusual jerk." The instruction is in the same language, though defendant says the word "or" was substituted for "and." This is evidently a...